Padmalochan Hota Vs. Haricharan Singh and Others - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 3. the trial court while discarding the case of the defendant, dismissed the suit on the findings that the suit was hit by non-joinder of parties and the plaintiff had failed to prove the identity of the disputed land and as such, had failed to prove his title over the same. 5. it is apparent from the decisions of both the courts below that the suit was dismissed on two grounds, namely on the ground of non-joinder of parties and secondly on the ground of non-specification of the disputed property and failure on the part of the plaintiff to prove title over the disputed property. moreover, it appears that though initially the vendors of the plaintiff had not been impleaded as patties, subsequently, by way of amendment they had been impleaded as defendants 2 and 3 and both the courts below ignoring the aforesaid aspect, have illegally observed that the suit was bad for non-joinder of parties. the courts below have referred to various materials on record and observed that the plaintiff had failed to prove his right over the disputed land and the identity of the disputed land had not been properly established. the learned counsel appearing for the appellant has tried to attack such finding by inviting a fresh look upon various evidence on record, however, the law is well-settled that in a second appeal the high court is not entitled to te-appreciate the evidence to come to a different conclusion.p.k. misra, j.1. plaintiff is the appellant against a confirming decision in a suit for declaration of title and for recovery of possession. the plaintiff's case is as follows :--the plaintiff had purchased ac.0.10 decimals of land appertaining to plot no. 457, khata no. 94 in mouza mahulpali by a registered sale deed dated 30-12-1964. even though, the plaintiff had purchased ac.0.10 decimals, ac.0.12 1/2 decimals of land had been settled and the plaintiff remained in possession of the same. the plaintiff had sold a portion of the land. on the eastern side of the land a pucca house was constructed and on the western-northern side a tin shed was raised. in the year 1966 defendant no. 1 had encroached upon ac.0.2 1/2 decimals of land on the southern side of the tin shed taking advantage of the temporary absence of the plaintiff. hence, the suit.2. the defendant in the written statement while denying the allegations made in the plaint claimed that he had purchased the house standing on plot nos. 452 and 457 from kartar singh who, in turn, had purchased ac.0.10 decimals of land by oral sale from brundaban panda, who had purchased the same from gopal dwibedi.3. the trial court while discarding the case of the defendant, dismissed the suit on the findings that the suit was hit by non-joinder of parties and the plaintiff had failed to prove the identity of the disputed land and as such, had failed to prove his title over the same.4. in appeal, the said decision having been confirmed, the present second appeal has been filed.5. it is apparent from the decisions of both the courts below that the suit was dismissed on two grounds, namely on the ground of non-joinder of parties and secondly on the ground of non-specification of the disputed property and failure on the part of the plaintiff to prove title over the disputed property.6. so fat as the question of non-joinder of parties is concerned, there is no doubt that the decisions of the courts below are not sustainable. both the courts below have observed that the plaintiff should have impleaded his vendors. since the dispute was between the plaintiff and another person, i do not think there was any necessity for the plaintiff to implead his vendors. moreover, it appears that though initially the vendors of the plaintiff had not been impleaded as patties, subsequently, by way of amendment they had been impleaded as defendants 2 and 3 and both the courts below ignoring the aforesaid aspect, have illegally observed that the suit was bad for non-joinder of parties.7. at the time of admission of the appeal the only substantial question of law which was indicated related to question of non-joinder of parties and no other question had been raised. the learned counsel appearing for the appellant submitted that even though no other question had been certified by the court to be substantial question of law, the appellant can challenge the decision on other substantial questions of law at the time of hearing. he has contended that both the courts below have not appreciated the question relating to identity of the land and boundary properly and have discarded the case of the plaintiff on untenable grounds.8. even there is no bat for the court in the second appeals to take up other substantial questions of law at the time of hearing, i do not find any weight in the submission made by the learned counsel for the appellant in the present case. the questions as to whether the identity of the disputed land had been established and as to whether the plaintiff had proved his title over the same are questions of fact. it is the admitted case of the plaintiff that he has purchased ac. 0. 10 decimals of land, but he claims to be in possession of ac. 0. 12 1/2 decimals of land. the courts below have referred to various materials on record and observed that the plaintiff had failed to prove his right over the disputed land and the identity of the disputed land had not been properly established. the learned counsel appearing for the appellant has tried to attack such finding by inviting a fresh look upon various evidence on record, however, the law is well-settled that in a second appeal the high court is not entitled to te-appreciate the evidence to come to a different conclusion.9. for the aforesaid reasons, i do not find any scope for interference in the second appeal which is accordingly dismissed. however, there will be no order as to costs of the present appeal.10. second appeal dismissed.